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Trump Officials Reconsider Prosecuting ISIS ‘Beatles’ Without Death Penalty

WASHINGTON — The Trump administration is trying again to find a way to resolve the cases of two British Islamic State detainees who are notorious for their roles in the torture and killing of Western hostages, and who have been held in indefinite wartime detention by the American military in Iraq since October, according to officials.

One option under renewed consideration is for the Justice Department to drop its insistence that prosecutors be free to bring capital charges against the men, half of a cell of Britons called the “Beatles” by their captives because of their accents.

Since the men were captured in early 2018, when Jeff Sessions was attorney general, the Justice Department has insisted that it be free to seek their execution. But at an interagency National Security Council meeting this week, Attorney General William P. Barr did not rule out dropping that stance, officials said.

A chief obstacle to bringing the men to trial has been a need for evidence held by the British government. Britain has abolished the death penalty and a British court has blocked it from cooperating in capital charges. Litigation is slowly continuing, but assurances that American prosecutors would not seek the death penalty could swiftly make the evidence available.

Mr. Barr’s indication that he is at least willing to consider changing the department’s position was first reported by The Washington Post, and an official familiar with internal deliberations confirmed it.

But several officials stressed that this did not amount to a final policy decision, and was just one of several previously rejected options now being reconsidered.

Other potential resolutions that are being reopened for discussion, they said, include transferring custody of the men to the Iraqi government for prosecution; taking them to the American military prison at Guantánamo Bay, Cuba, for continued wartime detention without trial; and revisiting whether the British evidence is truly crucial — or whether prosecutors might be able to mount a capital trial without it.

But since all of the other options bring their own problems and complexities, the Justice Department’s willingness to discuss the idea of seeking life in prison instead of death was seen internally as potentially significant.

The families of four of their American victims have long said it would be a mistake to send the detainees to Guantánamo Bay or to seek the death penalty, and instead have advocated seeking justice in a way that would not make the men into martyrs.

Representatives for the National Security Council and the Justice Department declined to comment. The officials familiar with internal deliberations spoke on the condition of anonymity.

The meeting was scheduled shortly after the four families published a column in The Post last week reiterating their call for the department to move forward with prosecuting the men, expressing worries that they could escape justice and restating their opposition to continuing to hold them in long-term detention without trial.

“We implore the Trump administration: Please, for the sake of truth, for the sake of justice, order these Islamic State suspects transferred to the United States to face trial,” they wrote.

The two men, Alexanda Kotey and El Shafee Elsheikh, were part of a cell whose gruesome hostage beheadings for Islamic State propaganda videos drew widespread attention in 2014. Among their victims was James Foley, the American journalist who was beheaded that August.

Another member of the cell, Mohammed Emwazi, or “Jihadi John,” is believed to have killed Mr. Foley. Mr. Emwazi was later killed in a drone strike. A fourth man, Aine Davis, has been imprisoned in Turkey on terrorism charges.

Mr. Kotey and Mr. Elsheikh were captured in Syria by a Kurdish militia, which held them there with numerous other Islamic State detainees from Western countries that have refused to take back their citizens. The British government moved to strip them of citizenship and made clear it did not want to take them back.

In part because Britain was not moving to solve the problem created by its own citizens, the Trump administration was not willing to nod to its legal system by offering an assurance that American prosecutors, if they handled it, would not seek to impose the death penalty, which remains legal in the United States.

After initial reluctance, the British government moved to share the evidence without such assurances, and showed witness statements and other material it had gathered about the two men to the Justice Department. But testimony from British government officials would also probably be necessary at any trial to make the evidence admissible.

To block continued cooperation, Mr. Elsheikh’s mother filed a lawsuit, and won an initial ruling in March.

In the meantime, in October, the Turkish military moved into northern Syria against the American-backed Kurds after getting a green light from President Trump, calling into question the militia’s ability to continue securely holding some 11,000 captured Islamic State fighters.

The American military took custody of Mr. Kotey and Mr. Elsheikh and took them to Iraq to ensure they would remain locked up. But since then it has grown increasingly impatient to hand them off.

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